Indicted Executive’s Mug Shots Are Exempt from FOIA

Freelance journalist Theodore Karantsalis might have thought that requesting a convicted white-collar felon’s mug shots from the U.S. Marshals Service would be straightforward. Instead, his 2009 Freedom of Information Act (FOIA) filing led to a lawsuit and eventually set the 6th and 11th Circuits in conflict over when personal privacy trumps the public’s right to information.

In 2003, Luis Giro was indicted over allegations that his Miami-based firm, Giro Investments Group, had promised false yields to investors and used clients’ money to operate a Ponzi scheme. According to the Department of Justice (DOJ), Giro had misappropriated more than $2 million. Giro fled the country but was ultimately arrested in Venezuela in May 2009 and handed over to the FBI. On June 22, 2009, Giro pleaded guilty to securities fraud. When the U.S. Marshals Service took Giro into custody, it took mug shots.

On July 11, 2009, Karantsalis e-mailed a FOIA request to the Marshals Service for the mug shots. The Marshals Service denied the request, citing an exemption for materials “compiled for law enforcement purposes” that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” Karantsalis appealed the denial but was again denied. He filed suit in September 2009.

The district court ruled that Giro’s booking photographs were exempt from FOIA because they didn’t serve the public interest. On appeal, the 11th Circuit upheld the decision. The March 11 ruling in Karantsalis v. DOJ conflicts with the 6th Circuit’s view that mug shots are not exempt from FOIA.

Although the case is an unusual circumstance, any corporate counsel involved in the criminal defense of an executive should understand how embarrassing material that could affect a company’s reputation or a jury pool can land in the media.

Circuit Split

Karantsalis is a split from the 6th Circuit’s 1996 decision in Detroit Free Press v. DOJ, which found a media company was entitled to mug shots under FOIA (see “Media Triumph”). That ruling led news organizations to submit FOIA requests through 6th Circuit states, and they have routinely done so ever since to obtain booking photographs for Bernard Madoff, Joe Nacchio and other offenders because the Marshals Service did not change its policy in states outside the 6th Circuit. That’s why the Marshals Service did not release Giro’s mug shots to Karantsalis, who made his FOIA request outside that jurisdiction.

Experts say the 11th Circuit’s ruling means media outlets will continue to flock to the 6th Circuit to obtain mug shots. “That decision will control what happens across the country, because everyone will make their [FOIA] request through their affiliates in [Kentucky, Michigan, Ohio or Tennessee],” says Barry J. Pollack, a member in Miller & Chevalier’s white-collar and internal investigations group. He notes that is exactly what media organizations did recently to acquire the shooter’s mug shots after the January shooting in Arizona that critically injured Congresswoman Gabrielle Giffords.

The circuit split demonstrates how FOIA could become the subject of a patchwork of interpretations, which causes unease among media lawyers.

“The purpose of FOIA was to be liberal in providing access to government documents, to be sure that the government’s activities are open to public scrutiny,” says Kurt Wimmer, a partner at Covington & Burling and former general counsel of Gannett Co. “To have a circuit by circuit distinction here doesn’t seem to live up to the spirit of FOIA and is irrational.”

Beyond Photos

Some experts say the 6th Circuit’s liberal interpretation of FOIA could lead petitioners to test the boundaries of their requests, although, according to the Marshals Service, that has yet to happen.

“What documents does the Marshals Service have that public interest would apply to?” asks Stan Twardy, a partner in Day Pitney’s white-collar defense and internal investigations practice group.

“Maybe the booking information: size and weight, things like that. Is there information about salary or residences? [Courts] use that to determine flight risk. That to me is a more interesting battle. This is the type of thing that at some point somebody will take to the Supreme Court.”

Lawyers involved in white-collar criminal defense work should develop arguments to prevent the release of mug shots and other personal information.

“The due process violation is what I’d argue,” says Mike Madigan, a litigation partner at Orrick, Herrington & Sutcliffe. “When you see a mug shot, you automatically think the person is guilty of something, when actually the mug shot is taken at the time of arrest when someone may not have done something. I’d argue that the man has not been convicted of any crime. Until such time as he’s found guilty, it would be a violation of his due process right.”

Stuart Slotnick, a partner at Buchanan Ingersoll & Rooney, says Karantsalis reminds corporate counsel to follow the Marshals Service’s lead and safeguard personal information about employees involved in white- collar criminal investigations. “General counsel in corporations should be aware of an individual’s right to privacy when they’re confronted with similar sorts of situations,” he says.